OSM shakeup reportedly coming

A high-ranking federal Office of Surface Mining official who has suggested the agency stay out of mountaintop removal issues in West Virginia is now helping with a new OSM review of the issue.

Brent Wahlquist, a former top OSM official in Washington, is now the regional director at the agency's Mid-Continent Coordinating Center in Illinois.

Wahlquist was asked by OSM Director Kathy Karpan to help the agency field office in Charleston and the Appalachian regional office in Pittsburgh with a major study of mountaintop removal.

Over the last decade, Wahlquist was instrumental in OSM's decision to ignore its own inspector's complaints that mountaintop removal mines were getting out of control and needed more attention from regulators.

Today, Wahlquist has helped edit an OSM report - expected to be released in final form this month - which will chart how federal officials will react to the growing public concern over mountaintop removal and its impacts on coalfield communities and the environment.

Also, Wahlquist is said to be in line to replace Allen Klein as director of the Appalachian regional office. Klein is reported to be on his way out - as is Charleston field office Director Roger Calhoun - partly because of bad publicity and public outrage over OSM's lack of action on mountaintop removal.

Alan Cole, press spokesman for OSM in Washington, said Wahlquist was asked to help with the mountaintop removal report because of his "long involvement and detailed understanding" of the issues involved.

Cole denied the reports that Klein and Calhoun were going to be replaced. "I haven't heard that rumor," Cole said.

Calhoun and Wahlquist also said they were not aware of any changes in the works.

Wahlquist, a former Carbon Fuels official, joined OSM in 1983. Ten years later, he wrote a memo that ended a federal investigation into mountaintop removal permitting in West Virginia.

Under the 1977 federal Surface Mining Control and Reclamation Act, strip mine operators must normally put the land they mine back the way they found it. In legal terms, mined land must be returned to its "approximate original contour."

Mountaintop removal is an exception. Mine operators can blast off entire hilltops, and dump leftover rock and earth in valleys and streams, if they obtain special reclamation variances.

Starting in 1992, inspectors in the Charleston OSM field office complained to their bosses in Pittsburgh and Washington that the state was permitting mountaintop removal mines without proper variances, and allowing them as "AOC" mines. The difference is important. Mines that don't receive AOC variances don't have to file post-mining land development plans. They can also dump more rock and earth in valley fill waste piles.

At the time, state regulators used an informal "50-foot rule," which required mines to be reclaimed to within 50 feet of their original elevation, or mine operators had to receive AOC variances.

In an October 1992 memo, Wahlquist wrote that federal law and regulations don't specify an elevation requirement for approximate original contour.

After that memo was written, the state threw out its 50-foot rule. Huge mountaintop removal mines could then chop hundreds of feet of hilltops and be considered as meeting the "AOC" guidelines.

In July 1993, after more complaints from local OSM inspectors, Wahlquist wrote another memo that declared the federal agency should stay out of the AOC issue.

"Earlier guidance or acceptance of reclamation by the regulatory authority should be given considerable deference because the regulatory authority has the primary responsibility for interpreting what constitutes AOC, and the permittee who received such guidance acted reasonably in construing the state's acceptance as assurance that AOC requirements had been met in accordance with the state program," Wahlquist wrote.

Wahlquist's involvement in keeping OSM out of the AOC issue dates back even further. He wrote a 1987 OSM directive that ordered agency officials to defer to state regulators on AOC matters.

During an interview in early May, Wahlquist said he believed state Division of Environmental Protection officials misunderstood his AOC guidance.

Wahlquist said the memos were not supposed to mean that the DEP could not have a maximum elevation change in its AOC definition.

Last week, Wahlquist said he has taken no formal action to try to clear up that problem.

Wahlquist said he called John Ailes, chief of the DEP Office of Mining and Reclamation, and Ben Greene, president of the West Virginia Mining and Reclamation Association, to tell them about the misunderstanding.

Calhoun said Friday that it could be two more weeks before he releases an OSM study of mountaintop removal. The study was supposed to be released by mid-August.

Wahlquist said he has reviewed drafts of the study and suggested some changes.

"I felt there were some things they could word a little better in terms of the interpretation of the data and what the data meant," Wahlquist said.

A draft of the study, obtained by The Sunday Gazette-Mail, said that OSM would again leave the issue of defining AOC up to the states.

Wahlquist said last week he continues to believe that defining AOC on a state and a case-by-case basis "makes more sense than defining it on a nationwide basis."

Patrick C. McGinley, an environmental law professor at West Virginia University, said Wahlquist is wrong.

"Congress imposes upon the Office of Surface Mining the responsibility to ensure that the states carry out the requirements of the federal laws, and also imposed upon the Office of Surface Mining the responsibility to develop regulations under SMCRA," McGinley said.

"Mr. Wahlquist's view that each state can come up with its own definition of approximate original contour indicates he either misunderstands OSM's clear responsibility, or for some reason has chosen to distort Congress' intent," he said.

"It's not the state's role to define basic terms and there is nothing more basic in the federal surface mining act than the concept of returning land to its approximate original contour," McGinley said. "To suggest that OSM should defer to the states on that critical issue displays an amazing ignorance of the law that is surprising coming from an individual who has worked for OSM for 15 years."